The Oath in Context

U.S. Policy in the Wake of 9/11: Habeas Corpus

The concept of habeas corpus (which means "you have the body" in Latin) dates back to the Magna Carta of 1215 and it was one of the earliest legal actions English courts could take. According to an article in the journal Social Education, "The writ, or written order of the court, gave judges the power to command the presence of a person before the court. This power worked two ways: (1) the writ was an order for the government and the accused to appear before the court; and (2) it required the government to explain why a person was being detained. If the court was not satisfied by the government's explanations for holding a person, the judges had the power to free the prisoner."

Suspending Habeas CorpusHabeas corpus has been suspended at different times throughout American history. According to an article in the journal Social Education, at the start of the Civil War President Abraham Lincoln suspended habeas corpus without permission from Congress. Congress later passed legislation to support his actions. For its part, the George W. Bush administration argued that during what it termed America's "war on terror," enemy combatants had no right to writs of habeas corpus, and that these foreign nationals could be held at Guantánamo Bay indefinitely. Enemy combatants, in response, applied for habeas corpus in federal court. Some notable cases have resulted, most significant perhaps being the Hamdan v. Rumsfeld ruling, which stated that the military commissions convened to try Hamdan were illegal and lacked the protections required under the Geneva Conventions and the United States Uniform Code of Military Justice. Since the Hamdan trial, many detainees in Afghanistan have attempted to bring habeas corpus lawsuits against the U.S. government, challenging the basis for their imprisonment without trial. However, according to a September 8, 2010 article in The New York Times, the Obama administration has effectively blocked these detainees from filing such lawsuits.

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